and over the next hour and since I remember I've taken undergraduate and graduate courses in both the colonial period and the American Revolution this will have to be a bit abbreviated but I hope to raise at least a few themes that I think are useful and even indispensable in understanding this period and I begin by noting I don't think professor Livingston is is here that's a shame okay that's alright well because I don't know if the point that I'm going to attribute to him
Professor Livingston's point is that we sometimes use the term founders, the founders of the United States, to refer to the founding generation and the great men who founded the country.
But there's something misleading about this word because obviously the United States wasn't just in an instant founded out of nothing, out of whole cloth.
It obviously owes something to the colonial inheritance.
And I just came across a book and I'm going to mention it to you even though you'll never find it because it's from 1897 but it's a book that's extremely interesting on the topic of where the Constitution came from and it's a book that explores the colonial inheritance and the book is by Sydney George Fisher and it's called, this is the title, I love these 19th century titles, The Evolution of the Constitution of the United States, showing that it is a development
of Progressive History and Not an Isolated Document Struck Off at a Given Time.
So in a sense you don't even need to read the book after you hear that.
But the author goes through 29 colonial charters and constitutions, 17 revolutionary constitutions,
23 plans of union in order to derive the constitution that we have now.
So, in fact, if we discuss where American liberty comes from, you have to start not just with the 1780s, but look back into the colonial period.
Now, some of you may be familiar with a book by David Hackett Fisher. It's enormous, 800 or 900 pages, called Albion Seed, Four British Folkways in America.
We're almost tired of hearing about it, even though it's a great book, and just have a few sentences on that and then jump right in.
In Fisher's book, he argues that in a sense you can see four discrete waves of migration to the United States, and we're talking 17th and 18th centuries here.
And he's talking about roughly the period from 1629 through 1775 is the period that he looks at most closely.
Closely. Beginning with the emigration of English Puritans from the east of England to Massachusetts Bay and concluding with the stirrings of revolution, four distinct geographical regions of England we can see.
So after the Puritans, Fisher identifies as a second group a small putative aristocracy and a sizable number of indentured servants originating in the south of England who made their way to Virginia.
The third migration originated in the North Midlands of England and Wales and terminated in the Delaware Valley
later in the 17th century going into the 18th, and finally from approximately 1718 through 1775
a fourth group consisting of immigrants from the borders of North Britain and Northern Ireland
made their way to the Appalachian back country.
Now obviously all these groups share a number of obvious and important traits in common.
They hailed from the same part of Europe, obviously.
They spoke a common language, and at least in a broad sense, they all shared the same religion.
Interestingly, in the Federalist Papers, Federalist No. 2, one of the few that John Jay wrote,
John Jay, of course, became the first Chief Justice of the Supreme Court,
John Jay cited these shared common characteristics as one of the factors that made the American Union possible.
Providence has been pleased to give this one connected country to one united people, a people descended from the same ancestors, speaking the same language, professing the same religion, attached to the same principles of government, very similar in their manners and customs.
So you notice he's saying the exact opposite of diversity is our strength.
He's saying, just the opposite, sameness is our strength.
This would have been, this Aurelian statement would have been completely incomprehensible to him, of course.
But the notable thing about Fisher's book is that he notes, yes, there are these basic similarities,
but that a lot of times what the colonies noticed about themselves was how different they were from each other.
For instance, in the mid-17th century, one Puritan, speaking of Virginians, declared them, quote,
The farthest from conscience and moral honesty of any such number together in the world.
Likewise, the Virginian William Byrd, referring to the Puritans, warned a correspondent,
A watchful eye must be kept upon these foul traitors.
And the two groups in turn shared a dislike of the Quakers.
And it reminds me, I had a, my college roommate was a Mormon who went on his mission in the,
In the former Yugoslavia, people over there don't like each other, but I'm sure they can all agree they don't like the Mormons.
Good luck, have fun over there.
But it was frequently said that the Society of Friends, as the Quakers were known,
would, quote, pray for their fellow men one day a week and on them the other six.
Likewise, the Quakers returned the favor, and here's what I like, the Quakers, I don't know how many of you know much about them, they're sort of a left-wing, in a sense a left-wing Puritan sect, the Puritans are people who think the Anglicans, I don't know how many of you know anything about Protestant or Christian denominations, I mean I know about them but that's because I'm a strange person, but the Anglicans have not de-Catholicized fast enough for the Puritans, the Puritans want, you know, at least, and there are other theological
The Quakers think the Puritans have not purified enough.
The Quakers will have their services not even in a church, in a meeting house,
and sometimes the whole meeting, no one will speak.
And they would consider that satisfactory.
You speak when you're moved to speak.
It's very egalitarian.
So for them, the Puritans are just an outrage, just barbaric that they would have
these backward customs of a structured,
and just an outrage, just barbaric that they would have these backward customs of a structured sort of liturgy.
And even though the Quakers believed in religious toleration, the principle of religious toleration,
that doesn't mean they were wimps. They believed you should be a Quaker.
So before Pennsylvania was founded, which is where, of course, a lot of the Quakers eventually moved beginning in the 1680s,
some of the Quakers had started to come to the colonies, in particular Rhode Island,
up and down the church aisles to rile these people up about their dogmatic religion and
the need to...
And you can just imagine these sort of staid Puritans wondering, who the hell are these
damn people, right?
So in Massachusetts, they didn't know what to do with these people.
And by the late 1650s, very reluctantly, the Puritans in Massachusetts actually by one
vote passed the death penalty for Quakers who came up and were disruptive.
And they reluctantly did this, because the problem is they kept making the penalty worse and worse,
but that made the Quakers come in greater and greater numbers. They were seeking martyrdom.
So they, you know, they cut off people's ears and they would still come back.
So finally they went with the death penalty, and my favorite story is of Mary Dyer from an island who went up there.
She went up to the mass grave several times. They kept throwing her out, get out of here, get out of here.
Well, one of the times she was up there, she was with two male companions.
I don't know what the circumstances were, but she's with her two male companions, and she's causing problems.
So the Massachusetts authorities sentenced her and the companions to death.
So they're led to the scaffold. Her two male companions are executed in front of her, and now it is her turn.
And again, they beg her, you know, please, just leave, and we won't kill you.
They were very uncomfortable executing a woman. Just get out of here.
She said, no, no, no, I must stay here and protest this unjust law against the Quakers.
Well, they finally said, all right, look, we just get out of here.
They just pushed her out.
They literally threw her out.
Get out.
And then she came back again.
And finally, they said, all right, this time, we have to execute her.
Unbelievable.
So this is the situation that they're faced with.
The fact is, they just don't care for each other a lot of times
in the colonies.
As late as 1795, one Quaker referred to New England in general
as the flock of cane.
So what I'm getting at with all this is that the fact that they
The fact that we don't like each other is actually very fortuitous, because it means, as one of the points that Fisher later makes in his book,
he didn't make all of these peculiar points, but one of the points that he makes in his book is that when it comes time to make a constitution,
nobody wants the Quakers to have any authority over them or New England or anything else.
So in fact, you get a fairly laissez-faire approach in various areas of life.
For example, very often we hear about, at the Constitutional Convention, there's a struggle between the small states and the large states.
Fisher says, yeah, that's moderately interesting, but what's also interesting is the competing regional cultures that are at work,
all these different cultures that are sometimes mutually antagonistic. How are they dealt with?
So when we look, for instance, at the First Amendment, and I promise I won't be treading upon Professor Livingston's Constitution talk,
The First Amendment is written in deceptively simple language, and yet, says Fisher, it entails a regional compromise of the highest complexity.
Because on the one hand, you want to preserve the religious liberty of Virginia and of Pennsylvania,
but at the same time, New England is not going to let you encroach upon their established churches.
So what position does the Constitution take? None whatsoever.
make up your own decisions, we're not going to impose uniformity on you.
So in a sense, precisely because of the mutual antagonism, the differences,
the response of the Constitution is silence.
And so that's why I say that their mutual dislike
to know them is to hate them, to quote an eminent Austrian economist,
was in fact fortuitous. Now obviously there's much more than mutual
antagonism
going on here that accounts for American liberty.
There is the fact that the American colonists did not see themselves as having some kind of a utopian task of remaking the whole world, and they were immensely practical men.
Now it's true, you can cite a few people to the contrary, that's true.
But when you compare the Americans to the French, the French Revolutionaries, for instance,
the Americans are not going to establish a new calendar, a brand new calendar.
Well, let's date everything from the year one when we first started, I don't know, executing Quakers or something.
We'll start the calendar then, and it just wouldn't have occurred to them to do that.
And Professor Reiko mentioned that I've got this collection of writings of Rufus Choate coming out.
Nobody knows who he is. He was a Daniel Webster clone in Massachusetts.
and but Rufus Choate, it was a mid 19th century observer who wrote about the colonial period
and he looked back at it and he said here's something very noteworthy about the colonial period
so I have this passage from Choate. There was another great work which they, meaning the
colonists, had to do and that was to establish their system of colonial government, to frame
their code of internal law and to administer the vast and perplexing political business of the
colonies in their novel and trying relations to England through the whole colonial age.
Of all their labors, this was the grandest, the most intellectual, the best calculated to fit them for independence.
Consider how much patient thought, how much observation of man and life, how much sagacity, how much communication of mind with mind,
how many general councils, plots, and marshalling of affairs, how much slow accumulation, how much careful transmission of wisdom that labor demanded.
And what a school of civil capacity this must have proved to them who partook in it.
Hence, I think, the sober, rational and practical views and conduct which distinguished even the first fervent years of the Revolutionary Age.
How little giddiness, rant and foolery do you see there.
No riotous and shouting processions, no grand festivals of the goddess of reason.
I wonder what he's talking about there.
No impious dream of human perfectibility, no unloosing of the hoarded up passions of ages from the restraints of law, order, morality and religion.
and then he becomes frank, such as shamed and frightened away the newborn liberty of revolutionary France.
Hence, our victories of peace were more brilliant, more beneficial than our victories of war.
So they were practical people. Now it's true, you read the Puritans,
and John Winthrop uses the biblical city on a hill analogy.
I always love listening to neoconservatives who say,
as Ronald Reagan said, we are a city on a hill.
Yeah, he said that. Anyway, when he says that, he doesn't mean we're a city on a hill, then we're going to run around the world and, you know, hillify the rest of the world.
The purpose of the city on a hill analogy, imagery, was to say that we will be visible to the rest of the world.
They can see our example of what a peaceful social order we have and prosperity we have when we follow the Bible in the way that we think right.
It was not meant to be something that would be an image, an imperialistic image, but of course later, when the later generations of Puritans had lost their faith, and all they had were the slogans, like John Dewey.
John Dewey is raised in a typical Protestant church, and he loves the bake sales and the dances, the picnics, but he doesn't believe in God.
So he wants to keep having the picnics and the bake sales and everything else.
So those people use this kind of Puritan language in a way that it was not intended to be used.
I have to say some nice things about Massachusetts. I come from there.
Now it's true. I'm not saying you would want to have lived in Massachusetts in the 17th century.
You might get thrown out. They would throw you out if you didn't conform to...
If you lived in New England town, and they weren't going to go into your home and ask about the inner workings of your conscience. That was private.
But in Massachusetts, of course, I'm not sure how much you know about this, but obviously it was somewhat theocratic.
In order to be able to vote, not that voting is everything, but you had to be a church member.
in order to be a church member you had to be in effect interviewed by about seven what were called pillars of the church and they would sit you down and ask you questions and they would want to know about your conversion experience and they would want to know you know and if this seemed persuasive to them and it seemed to them as if you were one of the elect God had chosen to go to heaven then you would become a church member even if you didn't get chosen to be a church member you still had to go to church because that might be just the thing for you would be sort of their
So that's true. But on the other hand, and there was something sort of utopian about their little communities.
For instance, the dead of Massachusetts, still in existence, their covenant.
Part of what their covenant said was that we shall by all means labor to keep off from us all such as are contrary minded
and receive only such unto us as may probably be of one heart with us.
The idea is that we would have a community that would be of one mind, and I happen to think that much as I'm not sympathetic to this form of Protestantism, I think a lot of what John Winthrop wrote about his vision of the community is rather beautiful, so, you know, throw me in jail or something.
Anyway, but on the other hand, there is, so we all know about this community aspect of New England life, and that sometimes it could be stifling, and that yes, they would throw Roger Williams out or whatever.
But on the other hand, we should take, for instance, the Massachusetts Body of Liberties, 1641, is a significant document that shows that on the other hand, there was a concern for individual rights and for limitation of state power.
What's notable about this is that the long-time governor of Massachusetts Bay was John Winthrop.
And Winthrop's view was that there should be as little written law as possible,
because he thought the less written law there is, the more discretion he and his judges will have in applying the Bible into particular cases.
So that meant, now John Winthrop was, you know, a reasonable person, but that meant you had to trust John Winthrop quite a lot and his judges.
And much as people of Massachusetts obviously respected him, they kept voting him back in, they voted him out temporarily because they realized this discretion is simply too great.
We would like to have some kind of a written description of what our rights are. And so you get the Massachusetts body of liberties.
Now, there are over a hundred provisions of the Massachusetts Body of Liberties, and they include items that are familiar to the student of British law and politics.
So, in the Massachusetts Body of Liberties, there are things like no taxation without representation, the right to a jury trial, the guarantee that no person would be deprived of life, liberty or property without due process of law.
Law. It also contains a sort of peculiar provision prohibiting wife beating excepting when the
husband is acting in self-defense, interestingly. Kind of an odd thing to mention. Now, in Jack
Green, who is one of the great colonial historians, has a book called Pursuits of Happiness in
which he argues that if you look at the colonies, there's a sort of a continuum with some of
I saw them on one side beginning as very community-oriented and other ones being much more individualistic.
So for instance, New England in its first several generations would fall on the first category
because that was a self-consciously family-oriented migration.
It wasn't just a bunch of single guys moving to Massachusetts.
These were families who moved there and they had strong community identity and so on and so forth.
Whereas, on the other hand, you had colonies like Virginia, which I'll say a few things
about in a second, that start off just the opposite.
That did start off mainly as single men, just a bunch of single men going to Virginia.
And as you can probably expect, that worked out just great, the first generation or so.
No problems there.
Only half of them died.
And the thing is that because Virginia, the first generation or so, there was disease
The Death Trap and the Chesapeake
The Pressure of a Growing Population
The cohesive community type colony is going to begin to dissipate in a certain way, whereas on the other hand, Virginia that had started off sort of like this, as it becomes prosperous and they realize that tobacco seems like a great source of prosperity, people begin to move there, it becomes more cohesive, more settled, and you get a kind of an aristocracy there that is very, very committed to self-government and local liberties.
In fact, in Virginia, they are so dedicated to their local, every time they speak about my country, of course, they mean Virginia.
They're so committed to this that, for instance, the House of Burgesses, the Legislative Assembly, which was the first representative assembly, which was established in 1619,
In the House of Burgesses in Virginia, it was actually a law that if you were a member of the House of Burgesses, every member had to be present, especially for the opening session.
So it was kind of a sense that we have a special responsibility toward the people and toward our local area.
And I always mention poor James Bray in 1691.
The House of Burgesses was so offended by his explanation for his absence that a warrant for his arrest was actually issued and he was held in custody until he made an apology because he was not there the first time.
So this, you know, is kind of an anecdotal way of illustrating the attachment that the Virginians had to their locality.
And that's worth noting. Even Daniel Boorstin, who's sort of a neoconish type historian, has this to say about them.
And this is very important. When he says they, he's talking about the Virginians.
Their localism has been given far too little attention and too little credit.
In these days, when states' rights are out of fashion, we are too often told that a man's preoccupation with the habits of the place where he lives can only drag the national progress.
We are fortunate that 18th century Virginians thought differently.
Their concern with the special requirements of their own particular place on earth
not only flavored their political life and expectations,
it also gave all their thinking the aroma of the specific
and kept all their social ideals within finite bounds.
So again, the utopian sentiment is nowhere to be found that tends to be so mischievous.
So therefore, what I'm getting at is that the colonies succeeded on the one hand
on the one hand in providing the individual liberty that makes a rational and civilized
life possible, while at the same time cultivating a corporate sentiment that provided a source
of resistance to centralizing and consolidationist schemes.
Remember Professor Livingston's point about the tendency of the modern state to want to
flatten out all of these things, well it was not easy to flatten these things out.
I would just mention very quickly the classical liberal Benjamin Constant, a great figure,
had this to say about the importance of the kind of local institutions that were being
built up in the colonies.
The interests and memories which are born of local customs contain a germ of resistance
which authority suffers only with regret and which it hastens to eradicate.
With individuals it has its way more easily.
The French revolutionaries, of course, despised the local customs and particularities that dotted their country's landscape and reorganized France into arbitrary departments that bore no relation to its historic regions.
In our own century, the deliberate and coordinated destruction of local institutions and intermediary associations
has been a principal weapon of various totalitarian systems
in eliminating potential sources of resistance.
Hitler, of course, despised German federalism,
which he correctly perceived as an obstacle to his consolidation of power.
Stalin, for his part, attempted to starve Ukraine into submission
when standard Soviet propaganda proved insufficient
to divest it of its traditional national feeling.
In the soft totalitarianism of social democracy,
we have seen how our own government has abetted social upheavals
at the local level in order to strengthen its control everywhere.
I'll have more to say about that later in the week.
Okay, there are a million other things.
We're going to move on. Let's see.
I think I'm doing okay on time. I'm doing all right.
Okay, good. Okay.
In fact, now is a good time for some water.
Talk amongst yourselves.
Okay, I'm ready.
Another theme to note about all this that relates to the building up of local institutions is that
is that from the beginning we see the colonies being extremely suspicious of any kind of confederation, right from the beginning.
I can think of three examples off the top of my head, because I've sort of given a similar talk before, sort of why it's on the top of my head,
but I can give three examples of confederations that were or were not entered into, and that reveal something about the Americans at this time,
at this time, how suspicious they were about, you know, would their rights be taken away from them if they entered into a confederation for some good purpose?
So, for instance, it was only belatedly that the Puritans entered into an inter-colonial alliance, the so-called Confederation of New England.
Persistent rumors of Indian hostilities and ongoing suspicions of the Narragansett tribe in particular led the colonies to consider this move.
And yet, in the classic American tradition, the colonists kept a close watch on this confederation.
So, for instance, New England had lived without incident for some years in increasing proximity to New Netherland.
But when in 1652 Cromwell attacked the Netherlands and the two mother countries were thus at war,
the possibility of a colonial clash with each side arming its Indian allies worried New Englanders.
And Connecticut and New Haven began to beat the drums for war and said,
This is what the Confederation of New England was made for, to go and prevent these things
from happening.
And yet it was at this moment that Massachusetts, who was a member of the Confederation, stood
up and questioned the right of the Confederation to declare offensive war.
This was not the understanding that we had.
And they absolutely, in a sense, used an early form of nullification, said, we're not going
to obey this plan of the Confederation to launch a preventive war.
So right away, you see a colony keeping watch over a confederation, rising up against it,
refusing to go along, and containing that great American spirit that is still so present
in our population today.
I was being sarcastic.
I'm sorry, that's from the Simpsons, actually, but I'll give you that story later.
Likewise, also, there is another example, the Dominion of New England, now this was
a confederation that was imposed on the colonies, partly in an effort to make sure that British
trade regulations would be enforced more effectively, and partly out of a concern, supposedly, for
the colony's defense against New France, King James II in the 1680s established the Dominion
of New England. So he took Massachusetts, and Maine, and New Hampshire, and then later
other colonies, Rhode Island, Connecticut, New York, and others, and formed them into
one government with one royally appointed governor. Now this was obviously people didn't
take kindly to this. What are you doing? You're just going to take our local institutions
and throw them in the garbage so that we can all, and plus making New York and New Jersey
in the same organization, this is just not going to fly with anybody.
Nobody wants to be in an organization with Rhode Island, either, because they're a bunch of...
The colonial view of Rhode Island the whole time was they were a bunch of freaks to stay away from them.
They were called Rogue Island. When they didn't send any representatives to the Constitutional Convention,
people were happy. Well, good. We were just being polite.
But anyway, so James II established this dominion of New England,
And the colonists were just waiting for an opportunity to smash this thing.
And in particular, it would have been difficult to keep them merged into this one royal government for very long, even in the best of circumstances.
But it was Sir Edmund Andros who was sent over to be the royal governor of this new dominion.
And of course, as you can hear from what I said, it included much more than what is today known as New England.
Andros, for instance, would just levy taxes just by his own fiat,
and if you protested this, he'd throw you in jail, and that grates on people after a while.
You can't really keep doing that.
And after the Glorious Revolution, and of course, there are no fax machines,
so it takes a while for the colonies to find out what's happened.
There's a completely new regime in England.
They get word in Boston that the new King and Queen, William and Mary,
They wanted all magistrates who have been unjustly turned out to resume their former employment.
That is to say, allow the colonies to reestablish their governments.
As Borsten puts it, the machine-like precision with which this parallel revolution unrolled
points to careful plans and leadership which no one has yet unearthed.
The townspeople rose, the countryside rose,
Andros and some of his principal counselors were thrown into jail.
A meeting presided over by the last governor under the Bay Colony Charter
adopted the Declaration of the Gentlemen, Merchants and Inhabitants
that had been drawn up by Cotton Mather.
And the dominion was at an end and self-rule was again in effect.
It was this same spirit that led the colonists to reject
Benjamin Franklin's proposed Albany Plan of Union in 1754.
By the way, obviously all of you should own
Murray Rothbard's Conceived in Liberty collection, four volumes.
I've been nagging Jeff Tucker for years.
I'd love to see this thing get put back into print.
You know, I'm marking up the library copy,
and I didn't really feel that guilty about that because I had to use it,
and it's so useful.
I mean, just imagine reading Murray Rothbard on colonial merit.
He finds all the evil people and exposes them.
He's the only historian who understands monetary history
in the colonial period.
All the other historians say, well, according to everyone,
there was a shortage of species.
So therefore they needed paper money.
You just think, well, I'm pleading with you people.
And also one of the great things is his portrayal
of Benjamin Franklin.
He's withering, Murray's withering on Benjamin Franklin.
He's a big jerk.
He goes along with all these, all these British, you know,
he recommends to one of his friends,
oh, you should become a stamp tax agent.
What is wrong with you?
Or he's in favor of paper money inflation
because it turns out, well, his print shop
is gonna get the contract for the money.
What a classic Rothbardian find that fact is, you know, man, we knew it was a conspiracy all along.
Well, anyway, Benjamin Franklin, under the pressure of Indian War, helped to drop a scheme according to which the colonies would yield a considerable amount of their authority to a new inter-colonial governing structure.
How many colonial assemblies ratified this plan? Zero. So there is that spirit again.
To heck with your confederations, we're concerned about them, we think they're a threat to our liberty.
So this is why I would argue that it's sort of misleading to say the traditional, the tradition of American liberty, you just start with the Constitution, you move forward.
In fact, you know, of course, we all know the Constitution probably step back, step away, you know, I have seven different hats on the Constitution, depending on where I am.
If I'm talking to Hillary Clinton, I'm very pro-Constitution, but when I'm with this crowd, you know, ah, throw it out, who needs?
Anyway, at the time of the framing of the Constitution, which sort of brings up, that's about the boundary of my talk,
and the formation of an allegedly more perfect union, the colonists had precedents for challenging the powers of a confederation,
as in the case of the Confederation of New England, for rejecting a confederation, as in the case of the Albany Plan of Union,
and for bringing down a confederation by force, as in the case of the Dominion of New England.
So it can hardly be surprising, therefore, that at the time, to learn that at the time of the ratification of the Constitution, three states, Virginia, New York, and Rhode Island, in exceeding to the new confederation, explicitly reserved the right to withdraw from the new union.
And as Virginia said, when so ever the same shall be perverted to her injury or oppression.
Apparently that hasn't happened yet in New York. They love it, I guess, or something, I don't know.
In so doing, they were only exercising the vigilance and libertarian principle that had animated the American experience during the colonial period.
So what we see from the colonial period, and the basic lesson it has to teach us, is that really the classic American sentiment is not Andrew Jackson's famous toast.
Post, Our Federal Union, it must be preserved, but John C. Calhoun's beautiful reply, The
Union Next to Our Liberties, Most Dear.
Now that might sound like a nice way to end, boy, that's really dramatic, but I've got
78 other things to say, so I'm going to move on.
It would have been a great ending, but now I had to talk about, it was the ending, I
think, for something else that I did, but now we've talked about things having to do
with the revolution.
Now obviously the revolution, good, I think I got, I don't know, 17 minutes and I got
Leave some time for questions. So a few themes that might be useful when looking
at the revolution. And then the question is, is it a revolution? Is it just a war
for independence? Was it radical? Was it conservative? I'll give a few thoughts on
this. I think for me the most impressive thing when you study the years leading
up to the colonists decision to make the break with Britain is the level of
sophistication of some of some of their arguments. I mean you know sometimes
Sometimes they're right, sometimes they're wrong, but they're dealing with very profound
issues in many cases.
So for instance, 1761, and this is long before people had thought about making a break with
England, but we all remember about James Otis talking about the general writs of assistance,
which were in a sense search warrants that you could get with practically no evidence
and just barge into people's homes to check to see if they're smuggling.
James Otis stood up and spoke out against this, the renewal of the writs of assistance.
And this is sort of significant. The colonists were totally against the writs of assistance,
partly because they were completely guilty. I mean, they're all smuggling. They're smuggling
like there's no tomorrow. So, of course, they don't want somebody to come into my home.
I got all the, you know, whatever I'm not supposed to have. There's that. But also,
Also, the fairly sophisticated argument that Otis is making has to do with what does it mean for something to be constitutional when you don't have a written document, as, of course, the British have an unwritten constitution.
Is something constitutional simply because Parliament says it is, hence legal positivism, or does it have to conform to some accumulated set of traditions and common practices and customs?
And the latter position, of course, was the American one.
But of course, Parliament would often say, well, we approved it.
Where's the room for argument?
Where's the further need for argument?
This is a very interesting issue.
And Otis is not successful.
But this is the type of thing that Sam Adams, who's
sort of the poor man's James Otis, can popularize issues
like this and explain them to ordinary people.
Now today, I think it would take about three hours
to explain this idea to people.
But at the time, people read, they're interested in things,
they discuss things in taverns, and so on.
Another thing is, for instance, 1764, the American Revenue Act,
sometimes known as the Sugar Act.
Now, there are many reasons that Americans
might have been against this act.
And I don't have time to go into all of them,
but in Murray Rothbard's book, there's
fantastic treatment of this particular act.
But I would just note one thing. We all know, and I think it was Dr. Higgs who pointed this out in the first talk, that the British had imposed a series of trade regulations that would pertain to colonial trade for the purpose of enriching the mother country, frankly.
And what's notable is that in principle, you don't really see the colonists in principle opposing that. In practice they oppose it, they just smuggle and they just ignore it.
In principle, they say, the British government has the authority to regulate the trade on behalf of the good of the mother country.
In principle, that's basically their position.
Now, in this American Revenue Act, another thing you also know is that for a long time, a lot of these regulations had just not been enforced very well.
They just looked the other way, and so on.
Well, one of the things we see in this American Revenue Act is that up till now, there had been an absolutely prohibitive tariff on molasses from the French and Dutch West Indies.
You get your molasses from the British West Indies, and you obviously see why they would do that.
Well, as a result, in 1764, the American Revenue Act actually lowered the tariff on foreign molasses considerably, and yet the colonists were furious at this.
Now, this is something, you know, you would just think, most people would just wonder why would you be upset about lowering a tariff.
But notice the principle that's involved here.
Nobody paid the tariff when it was a million percent.
I mean, nobody paid a hundred percent tariff. Nobody was paying that.
And it was not really bringing in revenue.
In fact, the British trade regulations, it cost them, up to about 1764,
it was costing the British government on the order of four times as much to enforce the trade regulations
as they got in revenues from the tariffs collected.
So it wasn't meant to be a source of revenue for the British government.
But if you lower the tariff, it might make it possible or reasonable for some people to
pay that tariff, to purchase the formal assets and pay the tariff, and therefore become a
source of revenue for the British government.
So suddenly now, it seems like it's a nice thing.
They're playing nice.
They're lowering the tariff.
But in fact, it's a sneaky way of engaging in taxation without representation.
Now that's great.
You know, that's great! What a sophisticated argument that is, in my opinion.
And again, it's something that you think would just, whoosh, over most people's heads.
As far as I can see, the tariff is lower.
And that's what, you know, Tom Brokaw says is lower, so I guess, uh...
I always tell my students to rile them up that, you know, this, and I don't single them out,
but I say, the American population today is exactly the type of people King George III would love to have dealt with.
They do as little as possible, they don't learn anything,
they speak in slogans that, you know, on bumper stickers or in the newspaper.
Beautiful, beautiful.
You know, I mean, I could just imagine King George III coming up with a slogan,
the king is your friend, and then going up to people and saying,
oh my gosh, look at what they're doing.
Yeah, but the king is our friend.
Oh, gosh. Anyway, 1767, one more example.
The, what do you call it, the Townshend Acts had to do,
Well, there are several things involved with them, but in this case you've got tariffs imposed on lead, paper, paint, glass and tea.
Now obviously the items themselves are not that significant, but what is significant is,
all right, you've got another taxation issue and there are issues related to that, but what were the British going to do with the revenue they got from these particular taxes?
was of even greater significance because up till now, many of the colonies had royal governors,
royally appointed governors. That was the way that England could keep a kind of a hand
in these governments. But the colonial legislatures retained the right to pay the governor's salary.
So if the governor got out of line, you would just threaten not to pay his salary. And you'd
be amazed at how quickly they would turn around on issues like this. Well, one of the things
The reason why this is going to be done with these tariffs is that the British would take the revenue and pay the governor's salaries with it.
So that the one restraint that remained to the colonists would be violently destroyed.
And now they would have really no control over these governors.
Now these are, you know, this isn't just, well they raised some taxes and the colonies didn't like it.
Okay, that's true, that's true.
but all these issues are, you know, they show really good functioning minds and these are issues that were being popularized for ordinary people
and yet in each case, and this is where I think maybe I differ a little bit from Murray Rothbard and I hate to do this
but in this case there's always this question of is the American Revolution a radical event or a conservative event
because you get the Russell Kirk's of the world and you know I'm sure he has his fine qualities, Russell Kirk
It seems like every book... I don't know if this is being recorded or not, but who cares?
Every book is the same thing. You know, like, you can't have liberty without order. Okay, I got you.
And they would say that it was conservative because...
Well, actually, let's hold that up. There was another argument that the American Revolution was actually rather radical.
And some of the things you might cite in this regard were the fact that by percentage of the population,
there were actually, in a sense, more emigres in the American Revolution than in the French one.
People who just had to flee to get out, people who were British loyalists and so on,
and that indicates a certain spirit of radicalism.
But notice in each of the cases that I've mentioned here,
and I didn't just pick these because they work,
all the cases basically follow this model,
what are the colonists really upset about?
They're upset that in each case the British are guilty of an innovation.
The colonists are the ones who want to continue along the traditional path
of self-government, the traditional rights of Englishmen,
The British are guilty of doing something new, of engaging in innovation.
That's very different. That's why I tend to think that it is a conservative event in the best sense of the word conservative.
Conserve good things. These rights that they had were good things.
That's why I come down on this side of things, because on the other hand, if you look at the French Revolution,
that's just innovation after innovation after innovation and there's no logical
stopping point you can always keep innovating whereas the the American
Revolution when it's over it's over you know and that's that's anyway that's
that's my my take on all this the final thing I would I would note and and the
thing and the more I read Murray Rothbard's take on this the more I think
this may just be a semantic some of this is just a semantic difference but I want
to say I think I've got a little just a few more minutes we start a few minutes
I know we want to stay on schedule, but it's very kind of you, sir. I appreciate that.
I want to just put a couple things on. I haven't used this whiteboard once, and let's use that.
It's a crying shame, but there's one more point I want to make,
and plus this will be a beautiful segue into Professor Livingston's talk, I assume.
And that is this. I want to just show very, very ridiculously briefly one more point
And how the colonial period and the revolutionary years can be brought to bear to settle a very,
very important historical dispute that has gone on since probably the 1830s.
Now I don't know, again, what the relative level of knowledge is here.
Some of you may be experts on this.
Some of you may never have heard about this before.
But really beginning about the 1830s, in a systematic way, you start to see two different
schools of thought trying to explain what is the nature of the American Union.
You have what might be referred to as a nationalist school and you have what might be referred
to as a compact school.
So here we go, put them on the board.
And basically the question that comes up here is, when the United States becomes the United
States, when the Constitution is formed beyond, even before the Constitution, what do we have
on our hands here?
Do we have a single people taken in the aggregate, the American people, and they founded the United States, and it's one and indivisible?
Or do we have a series of independent states coming together to form a confederation that's these people?
Now, it's true, if you look in the Constitution, well, it's true that you can see the words,
We, the people, do ordain and establish, and it looks like, well, the people of the United States did it, so I guess these people win.
The nationalist people, by the way, that argument totally doesn't work. It's the only argument they have and it totally doesn't work, but you can ask me about that later.
These people, who are these people? Who are the guilty parties? From Massachusetts, my home.
Everything's named after Daniel Webster. Take the Daniel Webster Highway and then pass the Daniel Webster Liberty Tree and then turn right on it.
Then there's Joseph Story, great jurist. He's telling kind of a story.
And finally...
I don't know how you people feel about Lincoln.
That's supposed to be a skull and crossbones.
Just give me a few minutes, and if you have a question, I'll try to take one question at the end, or you can see me afterwards.
On the other hand, you've got great people. You're totally thrilled to be siding with them.
Thomas Jefferson
Calhoun
Abel Upshur
A Brief Inquiry into the True Nature and Character of Our Federal Government
and why does this matter? What are the practical consequences of what might seem a fairly obscure issue of political theory?
And the answer is this, obviously, if you view the United States as being a compact among states, then you're much more likely,
it makes much more logical sense, to support things like nullification, which is an issue I don't have time to get into,
or secession, because, for instance, Lincoln, who holds this other view that it's just one big unbreakable hole,
for Lincoln, secession is just an arbitrary, states are just sort of arbitrary lines around an arbitrary group of people,
and so if a state secedes, Lincoln sees this as treason of one part of an unbreakable hole breaking away,
whereas these people see this as the supreme act of sovereignty, of a sovereign state withdrawing from a confederation
and Federation that it joined.
Well, throughout the whole colonial period,
now obviously you can go into much more depth about this,
but the whole colonial period totally vindicates
these people, it completely vindicates them.
Story in his book on the subject goes completely overboard
and says that the Americans have been one people
since the colonial period.
They've been one people, just one people.
Well, let me just read very quickly, very, very quickly,
just a little bit from Abel Upshur,
The colonial governments were clothed with the sovereign power of making laws and of enforcing obedience to them from their own people.
The people of one colony owed no allegiance to the government of any other colony and were not bound by its laws.
The colonies had no common legislature, no common treasury, no common military power, no common judiciary.
The people of one colony were not liable to pay taxes to any other,
nor to bear arms in its defense, they had no right to vote in its elections, etc., etc., etc., etc.
And there's just so many more things that... And he goes on and on and on.
For instance, suppose there had been one colony that had not gone along with the Declaration of Independence.
Would the other colonies, does anybody think the other colonies would have had the right
to coerce that colony because, hey, you're one people with us,
You've got to join with us against the British.
You know, no one says that.
Now, the other colonies may well have viewed that one as their enemy,
but they would have had no right to accuse it of treason.
That colony would have been in the same position as Canada
in the midst of this, in the midst of all this.
And there are so many arguments that these folks make, but none of them work.
And the final thing I would just note very quickly is
Even the Continental Congress, which during the Revolutionary War, there was kind of a national government, sort of,
but it was something that was established for practical purposes, had no authority to force the states to do anything,
depended on the subsequent ratification of its acts on the states, and that is sometimes cited as well.
Well, they were one people, they had this government.
Well, the colonies, nevertheless, were engaging in acts of sovereignty all this time.
Ticonderoga was taken by the troops of Connecticut before the Declaration of Independence.
Massachusetts and Connecticut fitted out armed vessels to cruise against those of England
in 1775.
South Carolina followed their example.
And even in treaties and everything, especially in the provisional articles with Great Britain
in 1782, by which our independence was acknowledged, proceeded upon this same idea, and this is
This is my final point. His Britannic Majesty acknowledges the said United States to wit New Hampshire, Massachusetts Bay, Rhode Island, and lists them all, each to be a free, sovereign and independent state.
So the British acknowledge that they were dealing with the common agent of 13 independent sovereignties.
There is no mystical, because all these people have to rely on is emotion and mysticism.
and Socialism.
Oh, we've always been all one people.
But then you actually bring law to them, and that's just seen as being very pedestrian.
How could you actually give us legal arguments?
We've all been one people.
This is all crazy stuff, and it has a lot to do with, I think, the artificiality that
Professor Livingston talked about when he talked about the modern state.
You have these people to thank for that.
I wish I didn't have to rush through this so much, but I think I've already gone over
a minute.
I'm sorry.
I don't know what happens to me.
I'll take one less minute next time.
But what happens here?
Do I take questions?
Okay, except in passing you didn't mention much about the Declaration of Independence, nor natural law, and how much this helped shape the future nation.
and the Declaration and the various ways that people have interpreted it.
It didn't occur to author Schlesinger either.
Yeah, yeah, well, you know, surprise.
But Professor Higgs was telling me earlier that there are a couple of very interesting books that have just come out.
One of them is a series of essays on kind of an intellectual exploration of the Declaration.
I can't remember the... he can tell us about that later.
But I mean, off the top of my head, it's hard to give a quick answer
You're talking about the radical versus conservative argument, perhaps one of the reasons that the revolution might appear radical is because it's so radical in the mainstream of the state that it's not making progress today.
Even what's concerning them right now.
but you know we started a little late. Thank you.